M v Police HC Auckland CRI-2010-404-384

[2010] NZHC 1933

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-404-384

M

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         1 November 2010

Appearances: M Coxon and H Pyun for the Appellant

P Singh for the Crown

Judgment:      2 November 2010

RESERVED JUDGMENT OF ELLIS J

This judgment was delivered by me on 2 November 2010

At 12 noon, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:           Crown Solicitors, PO Box 2213, Auckland 1140

S Mitchell, PO Box 959, Gisborne

Counsel:            M Coxon, PO Box 91781, Auckland 1142

M V POLICE HC AK CRI-2010-404-384  2 November 2010

[1]      On 21 June 2010 Mr M   was convicted of an offence under s 32(1)(c) of the Land Transport Act 1998, namely driving while his driver’s licence was suspended.   He was disqualified from driving for six months, which necessarily adversely affects his occupation as a courier.

[2]      Mr M   applied to the District Court for a limited licence under s 105 of the

1998 Act.  Those persons who may make such applications are specified in s 103(1). Section 103(1) specifically excludes those people referred to in subsection (2) including those described in paragraph (c), namely:

A person who is disqualified from holding or obtaining a driver licence by an order made on his or her conviction for an offence against s 32(1) (which relates to driving while disqualified or contrary to a limited licence).

[3]      On the basis of the exclusion in that subsection the learned District Court Judge held that she had no jurisdiction to grant Mr M   a limited licence.  Mr M   now appeals that decision.

[4]      Ms  Coxon,  on  behalf  of  Mr  M  ,  advanced  the  appeal  on  several overlapping grounds.  There was possibly some significance in the order in which the grounds were advanced and in particular the fact that her submissions about the plain meaning of s 103(1)(c) came after her submissions concerning its legislative history.  I say that because legislative history usually only becomes an issue where the ordinary meaning of a statutory provision is not clear.  That is a matter to which I shall later return.

[5]      To consider the “ordinary meaning” first, however, Ms Coxon quite correctly submitted that the bracketed words in s 103(2)(c) do not expressly refer to a conviction for driving whilst suspended under s 32(1)(c).  Rather, those words refer only to convictions under s 32(1)(a) and (b) i.e. for driving while disqualified or contrary to a limited licence.  In that respect Ms Coxon submitted (as she did in the District Court) that an application of the interpretative principle expressio unius est exclusio  alterius  means  that  s  103(2)(c)  does  not  apply to  those  in  Mr  M  ’s position i.e. those convicted under s 32(1)(c).

[6]      While not without sympathy for the position in which Mr M   now finds himself I cannot accept that submission.  Rather, I agree with Judge Simpson that the bracketed words are of a general descriptive nature only; they do not limit the application of the subsection in the way in which Ms Coxon contended.  Had such a limitation been the legislative intention it would have been a simple drafting matter either to refer only to s 32(1)(a) and (b) rather than to s 32(1) as a whole or, indeed, to use words such as “insofar as it relates” rather than “which relates”.

[7]      As well, I record my acceptance of Ms Singh’s submission that the use of parentheses throughout s 103 appears consistent in that in some of the other paragraphs, too, the bracketed words are merely an abbreviated (and incomplete) summary of the sections to which they cross-refer.

[8]      Nor do I accept the submission that the offences referred to in s 32 are somehow different in kind with the offence of driving while suspended being of a lesser seriousness; that is at odds with the fact that they all appear in s 5(1) and indeed with the fact that the penalties for each (as noted by Judge Simpson at [12]) are the same.  As the quotation in the following paragraph shows, other judges have also been of a similar mind.

[9]      Ms Coxon’s submissions relating to the legislative history of ss 32 and 103 were no doubt both encouraged and fortified by the decision of Judge Moore in Ramsey v Police1 where (faced with the same issue that arises in the present case) he said:

[15]     On the face of matters, in terms of what the Court does on a day to day basis, this is a youngster who has got a compelling case for the grant of a limited licence. The problem is that, as he was duty-bound to do, the police prosecuting sergeant takes the point that the statute does not permit this young man to be given a limited licence. Ms Walkington, as counsel, was aware relatively recently that that was going to be the police approach. In the very limited time available she has been thorough in her researches and comprehensive in the material placed before the Court.

[16]      I have already quoted the relevant statutory provisions, but they need supplementing by reference to the material that counsel has placed before the

1 Ramsey v Police DC Te Awamutu CRI-2009-072-595, 28 August 2009.

Court as to the passage, of what is now the Land Transport Act, through Parliament. The report back from the Committee of the Whole shows that what was s 64(2)(c) at that stage of the legislative process was amended in committee in the following way.  The initial wording was:

A person who is disqualified from holding or obtaining a driver licence by an order made on his or her conviction for an offence against s 32(1)(b) (which relates to driving while disqualified or contrary to a limited licence).

[17]     That earlier form of the bill may well of itself have been internally contradictory unless, and I have not got it before me, what is now s 32(1)(b) was then in a different form. In other circumstances I might have adjourned this to explore that topic. It is not one which can effectively be explored with the facilities available, on computer or otherwise, in the District Court at Te Awamutu. But, even if that reference to s 23(1)(b) was wider than now seems apparent, so that the words in brackets “(which relates to driving whilst  disqualified  or  contrary  to  a  limited  licence)”,  do  not  express  a concept that is wider than what was in s 32(1)(b) at that stage, what the Committee of the Whole did was take out the reference to s 32(1)(b) and replace it with a general reference to s 32(1). That is the current form of the statute. What they did not amend was the bracketed words, “(which relates to driving whilst disqualified or contrary to a limited licence)”.

[18]     That brings us to the present problem. Essentially the contention on the part of the police is that the general reference in s 103(2)(c) to s 32(1) means what it says.  In other words that it encompasses all three paragraphs. The submission on behalf of the applicant is that the bracketed words have the effect of cutting back the general reference to s 32(1) so that it is a reference only to s 32(1)(a) and (b). In other words, that the bracketed material creates an exception in the case of an applicant who has been convicted of driving whilst suspended, as opposed to driving whilst disqualified or contrary to a limited licence.

[19]      When  one  looks  at  the  Act  as  a  whole,  there  is  elsewhere  an expression of Parliamentary intention to treat all three forms of offending in the same way. In particular, the multiple offence provisions of s 32(4) gather up all three in a way which indicates that Parliament does not regard driving whilst suspended as being in a lesser category than the other two forms of s

32(1) offending.

[20]     When one looks at the current problem it is in the context that the penalty for all three forms of offending is the same (s 32(3)). The third or subsequent conviction provisions of s 32(4) gather up all three, which rather militates against the proposition that driving while licence is suspended has been seen as of lesser importance or seriousness.

[21]      Then we come to the significance of the brackets which, in my view is, against that background, determinative. The bracketed material was not changed in Committee of the Whole. What was changed is that a reference to one paragraph of s 32(1) was removed and a reference to the subsection as a whole included.

[22]     Regrettably, because I am conscious of wanting to give this young man a limited licence if I possibly could, I am forced to the conclusion that

the putting of that material in brackets is – and it is not by any means the only place in this legislation where it is done – intended merely to point to the general type of offence created by s 32(1) rather than to narrow down the reference to that section from all three categories to the first two only.

[23]      If there had been no brackets the meaning contended for by counsel would have been clear cut, and an argument to the contrary could not have succeeded.  But  the  use  of  brackets  changes  that  passage  from  being definitive to being merely by way of reference or broad description.

[24]      This is a conclusion which I have come to with considerable regret in the particular circumstances of the case. I would, as I said at the outset, welcome it being challenged, and challenged very promptly. I would expect that in the course of that challenge it will be necessary to explore somewhat wider the passage of the Bill through the House, but that is no criticism of the material which counsel has placed before me with only a few hours to bring it together. I think she has done a very good job in the circumstances.

[10]     As will be apparent from my own analysis above, I agree with Judge Moore that the meaning of the subsection as drafted is clear.   I record in passing that Judge Andree Wiltens has also expressed this view, as of course did Judge Simpson in the judgment under appeal.  Notwithstanding Judge Moore’s hope of a different result on appeal, and even putting to one side the general rule that recourse to legislative history is only permitted where such clarity does not exist, that history is, in any event, not capable of leading to a different result.  While (as Judge Moore’s discussion shows) the history may go some way to explaining how the “deficiency” in the bracketed words came to exist, it is not otherwise indicative of any gaping legislative lacuna or flaw.  It simply does not assist.

[11]     The appeal is dismissed accordingly.

Rebecca Ellis J